Citation Nr: 21067513 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-33 676 DATE: November 4, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a left hip disorder. REMANDED Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for pancreatic cancer, to include as due to exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. In a December 2006 rating decision, the RO confirmed and continued the April 2006 denial of service connection for a left hip disorder. The Veteran did not appeal or submit new and material evidence within the one-year period. 2. Evidence received since the December 2006 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claims of entitlement to service connection for left hip disorder. CONCLUSIONS OF LAW The December 2006 rating decision denying a claim of entitlement to service connection for left hip disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. New and material evidence has been received to warrant reopening of the claim of entitlement to service connection for left hip disorder. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to March 1972 and from May 1977 to July 1977, with service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2018 correspondence the Veteran requested a Board hearing. In a subsequent January 2021 correspondence, the Veteran withdrew his request for a Board hearing. 1. Claim to Reopen In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In an April 2006 rating decision, the RO denied service connection for left hip arthritis because there is no evidence that the condition began in or was caused by his service. In a December 2006 rating decision, the RO found that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for left hip arthritis. In a September 2007 statement the Veteran indicated disagreement with the RO's decision; however, the Veteran did not indicate which issues he was appealing. In an October 2007 correspondence the RO notified the Veteran that no further action would be taken until he clearly identified the issues with which he disagreed. In June 2008 the Veteran submitted a notice of disagreement identifying the issues he wished to appeal. As such, the December 2006 rating decision was unappealed, new and material evidence was not received within one year of its issuance, and the decision is thus final. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. Evidence of record at the time of the December 2006 rating decision included the Veteran's claim and lay statement, the Veteran's service treatment records (STRs), private treatment records, report of medical examination for disability evaluation, and buddy statement. His STRs document an in-service injury, a fall from his bunk causing a severe contusion to his left buttocks. The Veteran's statements essentially allege that he suffered an in-service injury that is etiologically related to his current left hip disorder. Evidence submitted after the December 2006 includes the Veteran's claim, Veteran's lay statements, a February 2014 letter from the Veteran's private physician Dr. J.G., and VA examinations. The Board finds that new and material evidence has been presented. The evidence, including the February 2014 letter from Dr. J.G. and the VA examinations, are new because the evidence was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim evidence of a relationship with the Veteran's in-service fall and his left hip disorder, relating to a nexus. See 38 C.F.R. § 3.303 (a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156 (a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran's claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for left hip arthritis is remanded. Remand is required for an adequate opinion that addresses all relevant evidence. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran received a June 2016 VA examination. The examiner noted a 2006 diagnosis of left hip arthritis and a 2013 diagnosis of right hip arthritis. The examiner opined that it is less likely than not that the Veteran's left hip degenerative arthritis was incurred in or caused by the contusion to his left buttocks during service. The examiner reasoned that the Veteran's x-rays showed very symmetric arthritis in his left and right hips. The examiner concluded that because the x-rays showed symmetric arthritis in both hips, the Veteran's left hip arthritis is not post-traumatic in nature. First, it does not appear the examiner considered some of the Veteran's private treatment records because those records document a diagnosis of mild DJD of the left hip as early as 2005; however, the 2016 examiner indicates onset of the Veteran's left hip arthritis is 2006. Second, the examination appears inconsistent, in that the examiner reasons the Veteran's arthritis is "very symmetric" in both hips; however, in the same examination report the examiner indicates the right hip arthritis was not diagnosed until 2013, which is more than 7 years after the Veteran's left hip arthritis diagnosis. The examiner provided no explanation regarding how the arthritis in both hips is "very symmetric" despite having onset years apart from each other. Furthermore, in an August 2016 statement the Veteran contends his right hip degeneration is due to his overcompensation of his left hip. Next, remand is required to make reasonable efforts to obtain potentially relevant VA medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 C.F.R. § 3.159(c)(2). Here, in the Veteran's January 2014 notice of disagreement (NOD) the Veteran reported that he is receiving treatment from the VA clinic in Sandusky for his left hip disorder. Moreover, the Veteran reported that his physical therapist stated that his fall suffered onboard the USS Francis Marion was most likely responsible for causing the tissue separation in his left hip joint. These records from Sandusky have not been associated with the Veteran's claims file. Additionally, in a May 2013 statement the Veteran asserts that some of his in-service medical records regarding his treatment onboard for his fall in 1977 are missing. Lastly, the Veteran submitted a February 2014 private medical opinion from Dr. G., who opined "the injury sustained in his fall in 1977 is as likely as not to be a result of that fall in 1977." Dr. G. essentially opined that injury occurred in the 1977 fall. In doing so, the clinician notes a statement made by the Veteran's physical therapist, Mr. T.A, who found the Veteran's symptoms consistent with significant left hip arthritis. As Dr. G.'s opinion does not explain whether or why the Veteran's current left hip disorder is related to his 1977 injury, this private opinion is insufficient upon which to grant service connection. On remand, however, the VA examiner must address this letter. Also, the Veteran is encouraged to get a more thorough medical opinion that addresses whether it is at least as likely as not (50 percent likely or greater) that his left hip disorder was caused by his fall in service. The opinion should include an explanation of why his left hip disorder was or was not caused by his fall in service. 2. Entitlement to service connection for pancreatic cancer, to include as due to exposure to herbicide agents, is remanded. The Veteran asserted that his pancreatic cancer was caused by his in-service exposure to herbicide agents. See May 2013 statement. The Board finds that remand is warranted for additional development. The Board cannot make a fully informed decision on the issue of entitlement to service connection for pancreatic cancer because no VA examiner has opined as to direct service connection. Service connection based on exposure to designated herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. Pancreatic cancer is not currently a disease associated with herbicide exposure for purposes of the presumption. 38 U.S.C.§ 1116 (a)(2); 38 C.F.R. § 3.309. Nevertheless, even if a veteran is not entitled to presumptive service connection for a disease claimed as due to herbicide exposure, VA must also consider the claim on a direct basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As such a remand is warranted for a VA examination. Here, the Veteran's service treatment records (STRs) document complaints and treatment for stomach pain and runny stools. For example, a September 1970 STR reflects the Veteran was treated for stomach problems that he had been experiencing for more than a year. He reported pain in his lower right side and black stools. The treatment provider diagnosed a bleeding ulcer. Thus, in light of these symptoms in service, a direct service connection opinion is warranted. Additionally, the Veteran submitted a January 2014 private treatment letter that supports the Veteran's claim. The clinician stated, "that the [Veteran] should be considered eligible for benefits based on his Agent Orange exposure." The clinician, however, did not provide an etiology opinion or supporting rationale. Thus, this private treatment letter is insufficient upon which to grant service connection. On remand, however, the VA examiner must address this letter. In June 2016 the Veteran underwent a VA examination. The examiner opined that it is less likely than not the Veteran's cholangiocarcinoma, adenocarcinoma of the bile duct is incurred in or caused by exposure to herbicides during service. The examiner reasoned that the main risk factors are primary sclerosing cholangitis and fibropolycystic liver disease (e.g., choledochal cysts). The examiner explained that there is a clear and strong association between chronic intrahepatic stone disease and cholangiocarcinoma. Moreover, the examiner explained there is no direct cause and effect relationship between Agent Orange exposure and the later development of cholangiocarcinoma. The examiner however did not provide a direct service connection opinion. In sum, there is no adequate medical opinion of record upon which the Board can rely to decide the claim, and remand is necessary to secure an adequate opinion on all theories of entitlement. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file, to include the treatment records from the Sandusky VA Clinic, as well as his service treatment records. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. The Veteran is encouraged to contact Dr. G. for the purpose of obtaining a more comprehensive opinion and to give his doctor the opportunity to provide an opinion as to the cause of his left hip arthritis. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Following the receipt of any outstanding records, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and likely cause of the cholangiocarcinoma cancer. The Veteran's entire claims file, to include a copy of this remand, should be provided to the examiner. Following a complete review of the record, the examiner is asked to provide the following opinion: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cholangiocarcinoma cancer is caused by an in-service injury or disease, to include as due to herbicide exposure? In addressing the above, the examiner must consider and discuss all pertinent medical and lay evidence of record, to include competent, lay assertions as to the nature, onset, and continuity of symptoms. If lay assertions in any regard are discounted, the examiner should clearly state, and explain why. 4. Following the receipt of any outstanding records, schedule the Veteran for an examination. The examiner must determine and identify any diagnosis of a left hip disorder. If there is no diagnosis of a left hip disorder, the examiner must address the diagnosis of record. The Veteran's entire claims file, to include a copy of this remand, should be provided to the examiner. Following a complete review of the record, the examiner is asked to provide the following opinion: Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left hip disorder is caused by an in-service injury or disease? In addressing the above, the examiner must consider and discuss all pertinent medical and lay evidence of record, to include competent, lay assertions as to the nature, onset, and continuity of symptoms. If lay assertions in any regard are discounted, the examiner should clearly state, and explain why. (Continued on the next page) A complete rationale must be provided for each opinion. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.